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Case 4:13-cv-04022-BAB Document 18 Filed 11/08/13 Page 1 of 4 PageID #: 76







Civil No. 4:13-cv-04022

Commissioner, Social Security Administration



Pending now before the Court is Plaintiff’s Motion for Award of Attorney’s Fees Pursuant

to the Equal Access to Justice Act, 28 U.S.C. § 2412. ECF No. 16. Defendant has responded to this

Motion and has no objections to Plaintiff’s requested fees. ECF No. 17. The Parties have consented

to the jurisdiction of a magistrate judge to conduct any and all proceedings in this case, including

conducting the trial, ordering the entry of a final judgment, and conducting all post-judgment

proceedings. ECF No. 7. Pursuant to this authority, the Court issues this Order.



Marvin Hamilton (“Plaintiff”) appealed to this Court from the Secretary of the Social

Security Administration’s (“SSA”) denial of his request for disability benefits. ECF No. 1. On July

30, 2013, Plaintiff’s case was reversed and remanded pursuant to sentence four of 42 U.S.C. §

405(g). ECF Nos. 14-15.

On October 10, 2013, Plaintiff filed the present Motion requesting an award of attorney’s fees

under EAJA. ECF No. 16. With this Motion, Plaintiff requests an award of attorney’s fees of

$2,854.80, representing 15.6 hours at an hourly rate of $183.00. Id. Defendant responded to this

Motion on November 7, 2013, and Defendant raises no objections to this Motion. ECF No. 17.

Case 4:13-cv-04022-BAB Document 18 Filed 11/08/13 Page 2 of 4 PageID #: 77


Applicable Law:

Pursuant to the EAJA, 28 U.S.C. § 2412(d)(1)(A), a court must award attorney's fees to a

prevailing social security claimant unless the Secretary’s position in denying benefits was

substantially justified. The Secretary has the burden of proving that the denial of benefits was

substantially justified. See Jackson v. Bowen, 807 F.2d 127, 128 (8th Cir.1986) (“The Secretary

bears the burden of proving that its position in the administrative and judicial proceedings below was

substantially justified”). An EAJA application also must be made within thirty days of a final

judgment in an action, See 28 U.S.C. § 2412(d)(1)(B), or within thirty days after the sixty day time

for appeal has expired. See Shalala v. Schaefer, 509 U.S. 292, 298 (1993).

An award of attorney’s fees under the EAJA is appropriate even though, at the conclusion

of the case, the plaintiff’s attorney may be authorized to charge and to collect a fee pursuant to 42

U.S.C. § 406(b)(1). Recovery of attorney’s fees under both the EAJA and 42 U.S.C. § 406(b)(1) was

specifically allowed when Congress amended the EAJA in 1985. See Gisbrecht v. Barnhart, 535

U.S. 789, 796 (2002) (citing Pub. L. No. 99-80, 99 Stat. 186 (1985)). The United States Supreme

Court stated that Congress harmonized an award of attorney’s fees under the EAJA and under 42

U.S.C. § 406(b)(1) as follows:

Fee awards may be made under both prescriptions [EAJA and 42 U.S.C. §
406(b)(1)], but the claimant’s attorney must “refun[d] to the claimant the amount of
the smaller fee.”. . .“Thus, an EAJA award offsets an award under Section 406(b),
so that the [amount of total past-due benefits the claimant actually receives] will be
increased by the . . . EAJA award up to the point the claimant receives 100 percent
of the past-due benefits.”

Id. Furthermore, awarding fees under both acts facilitates the purposes of the EAJA, which is to

shift to the United States the prevailing party’s litigation expenses incurred while contesting


Case 4:13-cv-04022-BAB Document 18 Filed 11/08/13 Page 3 of 4 PageID #: 78

unreasonable government action. See id.; Cornella v. Schweiker, 728 F.2d 978, 986 (8th Cir. 1984).

The statutory ceiling for an EAJA fee award is $125.00 per hour. See 28 U.S.C. §

2412(d)(2)(A). A court is only authorized to exceed this statutory rate if “the court determines that

an increase in the cost of living or a special factor, such as the limited availability of qualified

attorneys for the proceedings involved, justifies a higher fee.” Id. A court may determine that there

has been an increase in the cost of living, and may thereby increase the attorney’s rate per hour,

based upon the United States Department of Labor’s Consumer Price Index (“CPI”). See Johnson

v. Sullivan, 919 F.2d 503, 504 (8th Cir. 1990). See also General Order 39 (“Attorney’s Fees Under

the Equal Access to Justice Act”).



In the present action, Plaintiff’s case was remanded to the SSA. ECF Nos. 14-15. Defendant

does not contest Plaintiff’s claim that he is the prevailing party and does not oppose his application

for fees under the EAJA. ECF No. 17. The Court construes the lack of opposition to this application

as an admission that the government’s decision to deny benefits was not “substantially justified” and

that Plaintiff is the prevailing party.

Plaintiff requests a total award of $2,854.80, representing 15.6 hours at an hourly rate of

$183.00. ECF No. 16. Defendant does not object to this requested EAJA fee. ECF No. 17. This

hourly rate is authorized by the EAJA as long as the CPI-South Index justifies this enhanced rate.

See General Order 39. See also 28 U.S.C. § 2412(d)(2)(A); Johnson, 919 F.2d at 504. In the present

action, Plaintiff has requested $183.00 per attorney hour for work performed in 2013. ECF No. 16.

Based upon the CPI-South Index, this hourly rate is authorized for 2013. Thus, the Court awards

this amount.


Case 4:13-cv-04022-BAB Document 18 Filed 11/08/13 Page 4 of 4 PageID #: 79

Further, Plaintiff has requested 15.6 hours for attorney work performed in 2013. ECF No.

16. Plaintiff has submitted an itemized bill in support of this request. Id. Defendant has raised no

objections to this request. ECF No. 17. Having reviewed Plaintiff’s itemized bill, the Court finds

it is reasonable and should be granted.

Defendant claims the fees awarded should be paid directly to Plaintiff pursuant to Ratliff.

ECF No. 17. Ratliff requires that attorney’s fees be awarded to the “prevailing party” or the litigant.

See Astrue v. Ratliff, 130 S.Ct. 2521, 2528 (2010). Thus, these fees must be awarded to Plaintiff,

not to Plaintiff’s attorney. However, if Plaintiff has executed a valid assignment to Plaintiff’s

attorney of all rights in an attorney’s fee award and Plaintiff owes no outstanding debt to the federal

government, the attorney’s fee may be awarded directly to Plaintiff’s attorney.



Based upon the foregoing, the Court awards Plaintiff $2,854.80 in attorney’s fees pursuant

to the EAJA, 28 U.S.C. § 2412. This amount represents 15.6 hours at an hourly rate of $183.00.

/s/ Barry A. Bryant


ENTERED this 7 day of November 2013.